Citation Nr: 0944793
Decision Date: 11/24/09 Archive Date: 12/04/09
DOCKET NO. 99-21 200 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to an initial rating in excess of 30 percent for
migraine headaches.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Smith, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1979 to October
1984, and from January 1985 to March 1995.
The Veteran's claim comes before the Board of Veterans'
Appeals (Board) on appeal from a May 1996 rating decision of
the Department of Veterans Affairs' (VA) Regional Office (RO)
in Phoenix, Arizona. The RO in Nashville, Tennessee is
currently handling the matter.
In November 2006 the Board remanded the matter for additional
development. That development having been completed, the
claim has been returned to the Board and is now ready for
appellate disposition.
The Board notes that at the time of the last remand, the
issue of entitlement to service connection for deep venous
thrombosis of the right leg was on appeal. In an August 2009
rating decision service connection was granted for this
condition. As such, the claim is no longer in appellate
status and will not be addressed by the decision below.
FINDING OF FACT
The evidence shows that the Veteran's migraine headaches are
very frequent, prostrating, prolonged, and productive of
severe economic inadaptability.
CONCLUSION OF LAW
The criteria for a 50 percent disability rating, but no
higher, for the Veteran's migraine headaches have been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R.
§ 4.124a, Diagnostic Code (DC) 8100 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity in civil occupations. See 38 U.S.C.A.
§ 1155. Separate diagnostic codes identify the various
disabilities. The assignment of a particular diagnostic code
is dependent on the facts of a particular case. See Butts v.
Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may
be more appropriate than another based on such factors as an
individual's relevant medical history, the current diagnosis,
and demonstrated symptomatology. In reviewing the claim for
a higher rating, the Board must consider which diagnostic
code or codes are most appropriate for application in the
Veteran's case and provide an explanation for the conclusion.
See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).
At the outset, the Board observes that in October 1996 the
Veteran expressed disagreement with the May 1996 rating
decision that granted him service connection for his migraine
headaches. As such, the Veteran has appealed the initial
evaluation assigned and the severity of his disability is to
be considered during the entire period from the initial
assignment of the disability rating to the present. See
Fenderson v. West, 12 Vet. App. 119 (1999).
The Veteran has been in receipt of a 30 percent evaluation
for his migraine headaches throughout the appeal period. His
disability has been rated under Diagnostic Code (DC) 8100,
the code for migraine headaches. Under this code, a 30
percent evaluation is warranted with evidence of
characteristic prostrating attacks occurring on an average of
once per month over the last several months. A higher rating
of 50 percent is warranted with evidence of very frequent
completely prostrating and prolonged attacks productive of
severe economic inadaptability.
In this case, the Board finds the objective medical evidence
more closely approximates the requirements for a 50 percent
rating than the currently assigned 30 percent rating. Where
there is a question as to which of two evaluations shall be
applied, the higher evaluations will be assigned if the
disability more closely approximates the criteria required
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (2009). When, after careful
consideration of all procurable and assembled data, a
reasonable doubt arises regarding the degree of disability,
such doubt will be resolved in favor of the Veteran. 38
U.S.C.A. § 5107; 38 C.F.R. § 4.3 (2009).
Essentially, the difference between the 30 percent rating and
the 50 percent rating lies in the frequency of the attacks,
whether they are prolonged, and whether they are productive
of economic inadaptability. Both evaluations require that
the attacks be prostrating, although evidence in this regard
will nonetheless be discussed below.
Here, the Board finds that the evidence supports the criteria
contemplated by the 50 percent evaluation. The evidence
shows the Veteran's migraine headaches are very frequent.
For example, in a June 2008 VA treatment record it was noted
that the Veteran's headaches occur three to four times each
week. At a January 2007 VA examination, his headaches were
noted to occur daily, with severe symptoms two to three times
per week. In a July 2002 VA treatment record it was noted
the headaches occur every one or two days or two to three
times per week. At a May 1999 VA examination, the headaches
were documented as occurring three to five times per week.
In a January 1998 private medical report, it was noted his
headaches occur almost daily.
The Veteran's migraine headaches have also been shown to be
completely prostrating. At the January 2007 VA examination
it was noted that the Veteran's headaches include visual
disturbances, light sensitivity, sound sensitivity, and
nausea. The examiner stated that the headaches "interfere
with his daily activities." In a July 2002 VA treatment
note the headaches were noted to involve a throbbing
sensation starting at the back of the head and moving
forward, with photophobia, sonophobia, nausea, occasional
vomiting, visual disturbances including black spots in the
visual field, and excessive fatigue. It was noted that
during a headache, the Veteran must lie quietly in a dark
room. Photophobia and nausea were also documented in a
September 2001 VA treatment record. At the May 1999 VA
examination, the headaches were described as throbbing and
accompanied by a stiff neck, radiating pain, photophobia,
phonophobia, nausea, and occasional vomiting. An August 1997
private medical report also documented the photophobia and
nausea. Photophobia, nausea, and blurred vision were also
noted in a March 1997 private medical report. At a January
1997 VA examination, the stiff neck, nausea, vomiting,
blurred vision, and photophobia were also noted and it was
reported that the Veteran must go lie down when having an
attack.
The evidence also shows that the Veteran's attacks are
prolonged. In a June 2008 VA treatment record, the headaches
were found to last "anywhere from 8 hours to bedtime." A
July 2002 VA treatment record documented that the attacks can
last from a few hours up to two days. In a July 1996 private
medical record it was noted the Veteran had been having a
headache for two days. In an April 1996 private medical
record it was noted the Veteran had been having a headache
for three days.
The evidence also shows economic inadaptability due to the
Veteran's migraine headaches. In the January 2007 VA
examination it was noted that the Veteran's "work schedule
is flexible so he only misses 1-2 days of work per month."
Presumably, the Veteran would miss additional work if he did
not have the flexible schedule he currently enjoys. The
January 2007 lay statement from the Veteran's co-worker also
documented that the Veteran must call him from home at times
to say he is unable to come to work due to the headaches. A
May 2000 statement from a co-worker of the Veteran, who is
also a nurse, noted, "[o]n numerous occasions [the Veteran]
would come to the clinic complaining of severe headaches
which would interfere with his working at peak capacity.
These headaches would cause him severe pain to the point of
him having to leave work, putting the burden of his duties on
another officer and leaving the shift short handed."
The Board finds that the sum of this evidence most closely
approximates the rating criteria for a 50 percent evaluation.
By way of this decision, the Veteran is currently in receipt
of the maximum disability evaluation available for his
disability. A rating in excess of 50 percent is not
available under any other provision of the rating schedule
that is relevant. The Board has carefully reviewed the
rating schedule and finds no other Diagnostic Code that would
provide a basis to grant a higher evaluation for this
disorder. In essence, the Veteran currently has the highest
possible schedular rating provided for migraine headaches.
Notice and Assistance
The Board is required to ensure that the VA's "duty to
notify" and "duty to assist" obligations have been
satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp.
2009); 38 C.F.R. § 3.159 (2009). The notification obligation
in this case was accomplished by way of letters from the RO
to the Veteran dated in May 2003, December 2005, and December
2006.
The RO also provided assistance to the Veteran as required
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as
indicated under the facts and circumstances in this case.
The Veteran and his representative have been kept apprised of
the RO's actions in this case by way of the Statement of the
Case and the Supplemental Statement of the Case, and have
been informed of the evidence considered, the pertinent laws
and regulations, and the rationale for the decisions reached
in denying the claim. The Veteran and his representative
have not made the RO or the Board aware of any additional
evidence that needs to be obtained in order to fairly decide
this appeal, and have not argued that any error or deficiency
in the accomplishment of the duty to notify and duty to
assist has prejudiced him in the adjudication of his claim.
Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Therefore,
the Board finds that duty to notify and duty to assist have
been satisfied.
ORDER
Entitlement to a disability rating of 50 percent, but no
higher, for the Veteran's migraine headaches is granted,
subject to statutory and regulatory provisions governing the
payment of monetary benefits.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs